01/26/2013 05:27 pm ET

The Obama Administration Invents a Right to Wheelchair Basketball

Let me acknowledge — sincerely — that I love wheelchair basketball. I would vote for candidates to public office who would provide funding for “inclusive athletics” and would be proud if my sons’ schools offered such programs to their special-needs students.

Yet it boggles my mind that the Obama Administration, without an ounce of public debate or deliberation, without an iota of Congressional authorization or approval, could declare by fiat that public schools nationwide must provide such programs or risk their federal education funding. Talk about executive overreach! Talk about a regulatory rampage! Talk about an enormous unfunded mandate!

At issue is the 1973 Rehabilitation Act’s insistence that public schools not discriminate against students with disabilities. Longstanding regulations clarify that this requirement applies to extracurricular activities, too. A 2010 Government Accountability Office report highlighted confusion in the field about what exactly was expected of schools, particularly with regards to participation in sports, and urged the Department of Education to clarify the issue by publishing new “guidance.”

This is what’s happened today. And some of that guidance (still not on the Department’s website, as far as I can tell) is pragmatic enough. Schools must allow “reasonable” accommodations for student-athletes with disabilities, such as providing a “visual cue” to sprinters with hearing impairments. I’ve got no argument there.

But the Department’s Office of Civil Rights went much further, finding a “right” to separate sports programs in cases when accommodations are impractical. In other words, a right to wheelchair basketball. Read it yourself:

Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program — even with reasonable modifications or aids and services — should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.

In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.

Note especially the phrase “should be supported equally.” What might that mean? Must districts spend the same amounts on their disability-sports programs as on their regular sports program? Is it enough to offer wheelchair basketball, or must schools also offer wheelchair tennis, wheelchair volleyball, and wheelchair track and field, too? How would this be applied to other extra-curricular activities? Must schools offer special chess programs for students with cognitive disabilities? Special debate programs for students with speech challenges?

And, of course, how are districts supposed to pay for all of this?

Surely there are good answers to these and other questions and workable solutions that can be found. Trade-offs can be considered, priorities identified, compromises made. But the right place to hash out these concerns is in school-board meetings, not in Washington. And if the federal government insists on creating a “right” to these types of programs, the correct place to do that is on the floor of the House and Senate — not in the bowels of the U.S. Department of Education.

The step that federal officials are taking today will have wide-ranging consequences for decades to come. It potentially puts school districts on the hook for billions of dollars in new spending. At the very least, the changes should be subject to the regular regulatory process, which allows for public input, demands an accounting of potential costs, and gives all sides to voice their concerns. A better solution is to let legislators take up this question — and appropriate funds if they decide that wheelchair basketball and the like is a key priority.

The American people are a compassionate lot. I have no doubt that they will support the notion that kids with disabilities should get to play sports, too. But let’s put it to their elected representatives to decide how it might work and how far a federal mandate should go, not the faceless bureaucrats in the Office of Civil Rights.

Originally published on the Fordham Institute's Flypaper blog.